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InsiderOnline Blog: July 2013

Suspending Laws It Dislikes Isn’t a Power that the Executive Branch Has

The hurdle of standing would make it hard to challenge the Obama administration’s delay of the ObamaCare employer mandate in court. Nevertheless, “the president gets to do what he wants” isn’t really how government is supposed to work in a constitutional republic. As Michael McConnell points out, we elect a President, not a King:

Article II, Section 3, of the Constitution states that the president “shall take Care that the Laws be faithfully executed.” This is a duty, not a discretionary power. While the president does have substantial discretion about how to enforce a law, he has no discretion about whether to do so.

This matter—the limits of executive power—has deep historical roots. During the period of royal absolutism, English monarchs asserted a right to dispense with parliamentary statutes they disliked. King James II’s use of the prerogative was a key grievance that lead to the Glorious Revolution of 1688. The very first provision of the English Bill of Rights of 1689—the most important precursor to the U.S. Constitution—declared that “the pretended power of suspending of laws, or the execution of laws, by regal authority, without consent of parliament, is illegal.” […]

With the exception of Richard Nixon, whose refusals to spend money appropriated by Congress were struck down by the courts, no prior president has claimed the power to negate a law that is concededly constitutional.

In 1998, the Supreme Court struck down a congressional grant of line-item veto authority to the president to cancel spending items in appropriations. The reason? The only constitutional power the president has to suspend or repeal statutes is to veto a bill or propose new legislation. Writing for the court in Clinton v. City of New York, Justice John Paul Stevens noted: “There is no provision in the Constitution that authorizes the president to enact, to amend, or to repeal statutes.” […]

As the Supreme Court said long ago (Kendall v. United States, 1838), allowing the president to refuse to enforce statutes passed by Congress “would be clothing the president with a power to control the legislation of congress, and paralyze the administration of justice.” [Wall Street Journal, July 8]

What kind of compromise on immigration reform could be worth having, if President Obama can decide not to enforce the security provisions he does not like?

Posted on 07/09/13 06:21 PM by Alex Adrianson

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